The Appellate Record - July 2013

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The Appellate Record, July 2013 Page 1

THE APPELLATE June 2013

FEATURED ARTICLEBriefing and Oral Argument Tips From the Ninth Circuit

By: Rebecca A. Copeland (Law Office of Rebecca A. Copeland)

The Ninth Circuit Court of Appeals hears oral arguments in Honolulu threetimes per year. We are fortunate that our local chapter of the Federal Bar

2013 HSBA Appellate Section Board:

Chair: Ms. Rebecca A. Copeland

Vice Chair: Mr. Mark J. Bennett

Secretary: Ms. Bethany C.K. Ace

Treasurer: Mr. Robert Nakatsuji

HSBA CLE Liaison: Ms. Mitsuko T. Louie

HAWSCT Liaison: Mr. Matthew Chapman

ICA Liaison: Mr. Daniel J. Kunkel


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Association arranges to have the visiting panel speak to members of the local barduring each visit.

On June 12, 2013, the latest panel of judges attended the event entitledAppellate Practice Tips. The panel consisted of Senior Circuit Court Judges

Jerome Farris and Dorothy W. Nelson, and Circuit Judge Jacqueline H. Nguyen.

Judge Farris offered the following advice: tell your view of the case from thestart of your brief before getting to the opposing view; and, there is always someargument you can make on behalf of your client, but dont make your argumentwith a lot of nonsense.

Judge Nelson offered the following advice: during oral argument, excellentlawyers start their argument by looking the judges in the eyes and giving the courta short, specific explanation of the issues; when a judge asks a question, answer itrather than using the opportunity to plead your entire case; answering the judgesquestion may be the key to winning your case; avoid jury arguments; and, avoidusing your short time at oral arguments to attack your opponent.

Judge Nguyen offered the following advice: the most effective oral argumentsare those which are held in cases in which the court needs assistance from thelawyers on the issues; a short, concise brief that covers all the issues is best; usinghyperbole in a brief is distracting and unpersuasive; a good oral argument style ishaving a thoughtful conversation with the court; and, if the law and facts are onyour side, you should walk away from oral arguments knowing you will prevail.

In answer to questions from the audience, the judges also provided thefollowing practice pointers for brief writing and oral arguments:

The impact of oral arguments on the case often depends on the facts, mostoften oral argument has more of an impact in cases in which the law is verydifficult, there are a lot of issues, or there is an undecided area of law;


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Oral arguments are not valuable if the attorneys merely repeat what is in thebriefs;

In preparing for oral arguments, focus your minds eye on the pivotal pointsof the case and go straight to them at oral argument;

Judges will often ask questions on the issues that are most pivotal to see if the lawyer has something to say that will change the courts mind;

If you are getting extensive questions, it may mean that the judge is not intune with the attorneys argument;

The term nothing case is used to refer to a case in which oral argumentswill not make a different in the outcome;

Sometimes the judges come to oral arguments with different views, and theargument can add value and change a judges mind;

Supplemental briefs may be required if the judges perceive a point that isimportant but not addressed in the briefs;

If you get questions that were honestly not expected, it is okay to ask thecourt to provide a supplemental brief but the brief should be in a very shortwindow of time (the next day);

Remember that the court of appeals will not decide facts that is within the

province of the trial court;

If prior cases are wrongly decided, dont be afraid to make that argument, butyou need to explain why and not just argue that the law is wrong;

If the court needs to look to out of circuit precedent, there is no preference forany other particular circuit as long as the analysis of the cases is sound.

Finally, on the movement of the court to shorter oral argument times, the judges agreed that as long as the attorneys and the judges are prepared, shorteroral arguments are good for the attorneys, being prepared means getting straightto the important points at the argument.

Mahalo to the judges for joining the local chapter of the Federal Bar Association and sharing their tips and advice!


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A Lunch-Hour Talk with Associate JusticeRichard W. Pollack of the Hawaii Supreme Court

By: Christopher T. Goodin (Litigation Department, Cades Schutte LLP) and Mitsuko T. Louie(DCCA, Staff Attorney, Securities Enforcement Branch)

At the June 17, 2013 meeting of the HSBA Appellate Section, AssociateJustice Richard W. Pollack discussed his experience transitioning from being acircuit court judge to a supreme court justice. He also addressed the certiorariprocess, oral argument, and brief writing. Below is a summary of the talk.

1. The Move from the Circuit Court to the Supreme Court. The jobs of a circuit court judge and a supreme court justice are quite different. For example,the work in the trial court is quick and a great deal of time is spent presiding overhearings. By contrast, the supreme court justices have more time to deliberate andtheir primary work involves research and writing.

The transition from the circuit court to the supreme court came naturally toJustice Pollack. Prior to his appointment in the circuit court bench, Justice Pollackworked in the appellate division of the State Public Defenders Office for a total of fourteen years. During that time, the appellate division handled over 1,000 appeals.

And Justice Pollack himself argued between 75 and 100 cases. Additionally, duringhis tenure on the circuit court, Justice Pollack served as a substitute justice for thesupreme court in approximately 1520 cases.


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2. The Cert. Process. When an application for a writ of certiorari is filed,the application is assigned to a justice on a rotating basis. The justices chambersprepares an exhaustive memorandum summarizing the facts and proceduralhistory, analyzing the issues, and recommending whether to accept the application.These memos typically run between 3050 pages and sometimes exceed 100 pages.

The initial memorandum is circulated within 30 days after the application is filed.Within the next two weeks, other chambers may circulate additional memoranda,particularly if they disagree with the initial memorandums recommendation. The

justices will then vote on whether to accept the application. The supreme court hasan internal rule that requires at least three votes to accept an application.

Occasionally, justices prepare opinions dissenting from an order accepting orrejecting an application. Justice Pollack has authored several such dissents becausehe believes it is important to set forth the reasons for his vote. Justice Pollackexplained that the dissenting opinions are unpublished, though they are potentiallycitable as persuasive authority and may influence later decisions. See Haw. R. App.

P. 35(c)(2). Justice Pollack noted that, in considering an issue, he reviews all of theHawaii authority on point, including citable unpublished dispositions.

Justice Pollack estimated that approximately 25% of cert. applications areaccepted. Of those accepted, 75% of the cases are set for oral argument. JusticePollack explained that the supreme court will not set a hearing if the issues areparticularly clear. Even if the supreme court orders a case submitted on the briefs, aparty may file a motion for retention of oral argument. See Haw. R. App. P. 34(c).

3. Oral Argument. In light of the amount of work that goes into the cert.process, the supreme court justices are very familiar with the case by the time of

oral argument. Justice Pollack suggested that attorneys avoid beginning theirarguments with a recitation of the basic facts of the case. If you want to start withthe facts, consider focusing on those that are truly dispositive, and be creative inyour approach. Visual aids such as charts and videos may be appropriate. See Haw.R. App. P. 34(i).

The justices generally allow an attorney to speak for the first few minutes of the argument uninterrupted. After that, they will likely start asking questions.

4. Brief Writing. Be sure to follow the rules. Appellate courts tend to bestrict in their enforcement.

Additionally, be careful with the facts. Check that all of the relevant filings,exhibits, and transcripts are made part of the record. Each factual statement in abrief or cert. application should be supported by a record citation. The justices lawclerks verify every record citation.

Finally, Justice Pollack explained that, when there is a novel issue of law inHawaii and there is conflicting authority in other jurisdictions, he appreciates itwhen a brief acknowledges the adverse authority and explains why it is


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unpersuasive. Justice Pollack noted that, even if opposing counsel has not cited theadverse authority, the justices law clerks will probably find the adverse authorityin their independent research and discuss the authority in their bench memos.


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This Month in Appell The following United States Supreme Court Justices assumed office in July:

John Jay, Samuel Freeman Miller, George Shiras, Jr., John Hessin Clarke,Harlan F. Stone, and Robert H. Jackson.

JEFS E-Filing Tip of The Notice of Electronic Filing generated by the JEFS system is sufficient

service of process under the rules of the court, but only for parties who arealso registered with JEFS. If there is a party to the case who is notregistered with JEFS, a paper copy must still be served.


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June Published Appel In June, the Hawaii Supreme Court issued ten published opinions and the

Intermediate Court of Appeals issued one. Below is a brief synopsis of each:

In Mortg. Electronic Registration Sys., Inc. v. Wise , SCWC-11-0000444 (June28, 2013), the HAWSCT held that mortgagors were precluded from raising thestanding of MERS to bring a foreclosure action because (1) a standing objection isnot unique to a confirmation sale proceeding, and P(2) the mortgagors failed toappeal the foreclosure judgment thus barring challenges to standing under thedoctrine of res judicata.

In Assoc. of Apartment Owners of the Waikoloa Beach Villas v. SunstoneWaikoloa, Inc. , SCWC-11-0000998 (June 38, 2013), the HAWSCT held that acondominium regime violated Hawaii law because it imposed limitations on the

AOAO in arbitration and litigation with Sunstone that were more restrictive thanthose imposed on other persons.

In Haw. Assoc. of Seventh-Day Adventists v. Wong , SCWC-28592 (June 28,2013 ), the HAWSCT held that the Seventh-Day Adventists lease agreement wasambiguous as to whether it permitted cabin rentals to the public not affiliated withthe church, even though the parties had stipulated that the provision wasunambiguous.

In Nelson v. Hawaiian Homes Commn , (Addresses Attorneys Fees Cost)

(June 28, 2013), that HAWSCT held that even though the petitioners were theprevailing parties to the appeal, attorneys fees and costs were not allowable underthe private attorney general doctrine as barred by the doctrine of sovereignimmunity.

In Liberty Dialysis-Haw., LLC v. Rainbow Dialysis LLC , SCAP-12-0000018(June 27, 2013), that HAWSCT held that the State Department of Healths generaladministrative rules did not apply so as to disqualify members of the State HealthPlanning & Development Agency committees that are established to reconsider theagencys approval of a Certificate of Need.

In Yukimura v. Yukimura , SCWC-29927 (June 27, 2013), the HAWSCT heldthat the Family Court was foreclosed from modifying a divorce decree related to theapportionment of liability for capital gains taxes because modification was notpermitted under the applicable rules governing requests for modification.

In State v. Han , SCWC-11-0000814 (June 19, 2013), that HAWSCT held thata colloquy between the judge and a defendant involves a verbal exchange in which


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the judge ascertains the defendants understanding of the defendants rights" -- andthe family court violated that right.

In State v. Casugay-Badiang , SCWC-11-0000802 (June 28, 2013) (AmendedOpinion), the HAWSCT affirmed methamphetamine trafficking convictions because

the circuit court had discretion to sentence the defendant five years imprisonmenteven though he had no prior criminal record because the relevant sentencingstatutes any other law to the contrary language did not specifically exempt itfrom other sentencing provisions.

In Willis v. Swain , SCWC-29539 (June 7, 2013), the HAWSCT held that aninsurance company owes a duty of good faith in the absence of a contractualrelationship related to a claim under the Hawaii Joint Underwriting Program(HJUP). According to the court, the insurers good faith covenant implied in suchmotor vehicle policies applies to claimants under the assigned claim procedureirrespective of the absence of a written insurance policy."

In State v. Atwood , SCWC-30337 (June 3, 2013), the HAWSCT held thatbreach of contract alone does not suffice to establish probable cause to charge adefendant with theft in the first degree by deception where the record fails to showthat the defendant did not intend to perform his part of the bargain nor otherwisedeprive the other party to the contract of property exceed the statutes thresholdlimitation ($20,000).

In In re Application of the Trustees Under the Will and of the Estate of JamesCampbell, Deceased, to Register and Confirm Title to Land Situated at Kahuku,

District of Koolau Loa, City and Cnty. of Honolulu, State of Haw. , 30006 (June 13,2013), the ICA held that the Land Court did not err in denying its claim of ownership of all mineral and metallic mines, including geothermal rights, on theproperty and its claim for reserved easement for the free flowage of waters.


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Upcoming Events

July Appellate SectiPlease join the HSBA Appellate Section for its regular monthly meeting on

Monday, July 15, 2013, from noon to 1:00 p.m., at the HSBA LargeConference Room.

Our presentation will be a conversation about the United States SupremeCourts decisions in Dennis Hollingsworth, et al., v. Kristin M. Perry, et al. , No. 12-144 (Californias Proposition 8) and United States v. Edith Schlain Windsor, In HerCapacity as Executor of the Estate of Thea Clara Spyer, et al. , No. 12-307 (Defense of Marriage Act) with special guests former Hawaii Supreme Court Justice Steven H.Levinson and Intermediate Court of Appeals Judge Daniel R. Foley.

A light lunch will be provided. VCLE credit is pending.

RSVP to the Appellate Sections Secretary, Bethany C.K. Ace, [email protected].


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Coming Soon:FEDERAL APPELLATE PRACTICE MANUAL : The Appellate Section ispleased to announce that it will publish another appellate manual in conjunctionwith the Hawaii State Bar Association. This years manual will be entitiledFederal Appellate Practice Manual. The manual will provide valuableinformation and insight into practicing appeals in the federal arena, with specialemphasis on the United States Supreme Court and United States Court of Appealsfor the Ninth Circuit. Our contributors and/or editors include: Rebecca

A. Copeland, G. Richard Morry (editor), Marissa Luning (editor), Mitsuko Louie(editor and contributor). Ninth Circuit Judge Richard Clifton, Christphoer Goodin,Doug Fredrick, John Duchemin, Monica Suematsu, Kimberly Asano, Cal Chipchase,Elijah Yip, Robert Thomas, Mark Murakami, Steven Gray, Johnathan Bolton, LisaMunger, Lisa Bail, Trent Kakuda, Bethany C.K. Ace, and Brett Rowan.

2013 HAWAII STATE BAR CONVENTION : The Appellate Sections time at thisyears Bar Convention is scheduled to include presentation of the Federal AppellatePractice Manual (with presentations by many of the contributors to the manual),Hawaii Appellate Motions Practice (with an insert for the Hawaii Appellate PracticeManual released last year), and an Appellate Panel. Our Appellate Panel willinclude distinguished Hawaii jurists including Hawaii Supreme Court Chief JusticeMark Recktenwald and Associate Justices Simeon Acoba, Sabrina McKenna, andRichard Pollack. Mark your calendars now for Friday, September 27, 2013 .


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Useful Appellate LiThe Hawaii Judiciary: www.courts.state.hi.us

United District Court for the District of Hawaii: www.hid.uscourts.gov

United States Court of Appeals for the Ninth Circuit: www.ca9.uscourts.gov

United States Supreme Court: www.supremecourt.gov

Hawaii State Bar Association: www.hsba.org

Blogs by our Members:www.hawaiilitigation.com (by our Member Louise Ing)

www.hawaiioceanlaw.com (by our Member Mark M. Murakami)

www.hawaiiopinions.blogspot.com (by our Member Ben Lowenthal)

www.insurancelawhawaii.com (by our Member Tred R. Eyerly)

www.inversecondemnation.com (by our Member Robert H. Thomas)

www.hawaiiappellatelaw.com (by our Member Charley Foster)

www.recordonappeal.com (by our Chair Rebecca A. Copeland)


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Appellate Section WebsiteThe Appellate Sections website includes useful appellate resources, including

handouts from prior monthly meetings, copies of this newsletter, and power pointpresentations from the Appellate Sections program at the 2012 HSBA Bar

Covention.

www.hawaiiappellatesection.org

Hawaii Appellate Practice The Hawaii Appellate Practice Manual includes information you need to know forfiling appeals in Hawaii, including how to e-file documents on the Judiciarys E-

Filing System, how to supercede a judgment, and how to brief and argue cases. Themanual also includes useful appellate forms. The Manual was co-sponsored by the

Appellate Section and the Hawaii State Bar Association, and is available forpurchase at the link below.

http://www.hsba.org/resources/8/Manuals/Publications%20List%20Fillable%20(updated%209-1-2012).pdf


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Stay tuned for the August The Appellate Record

If you are interested in contributing to our newsletter in any way, please contact theSections Chair Rebecca A. Copeland at [email protected]

The Appellate Record is presentedas a courtesy to the Members of theHawaii State Bar Associations

Appellate Section by its Board.Mahalo and enjoy!

The Appellate Record - July 2013

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